Tate v. State

• Decision Date: 01 May 1940
• Docket Number: No. 21036.,21036.
• Citation: 141 S.W.2d 351
• Parties: TATE v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W.2d 351

TATE v. STATE.

No. 21036.

Court of Criminal Appeals of Texas.

May 1, 1940.

Rehearing Denied June 26, 1940.

Appeal from District Court, Erath County; Sam M. Russell, Judge.

Homer Tate was convicted of the theft of a cow, and he appeals.

Judgment reformed and, as reformed, affirmed.

Oxford & McMillan, of Stephenville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the theft of one head of cattle, and upon conviction therefor was sentenced to serve a term of four years in the State prison.

The testimony of the State shows that the complaining witness Mr. Polk lost a certain Jersey cow sometime in December 1938, in Erath County, and she was later located in Palo Pinto County sometime in September 1939. The State showed that appellant and one Robert Caldwell took this cow in December 1938 to Palo Pinto County and there sold her for $23 and divided the money received therefor between themselves. The State relied upon circumstantial evidence to establish the unlawful taking, and the court so instructed the jury in a proper charge thereon.

The appellant complains in his bill of exceptions No. 1 because of the following facts: In the beginning of the trial appellant's attorney filed a written motion before the trial court praying that he enter an order requiring the district attorney to furnish the defendant with a list of the witnesses whom he expected to use in the trial of the case. Although it seems that the court did not make any ruling on said motion, nevertheless the said attorney did furnish such a list to the defendant's attorney of nine witnesses, omitting the name of one witness, and also the name of Robert Caldwell, who was also indicted for the theft of the same cow. When said Robert Caldwell was offered in evidence by the State the appellant pleaded surprise on account of the fact that said witness' name was not included in the names furnished him by the district attorney, and this fact is made the basis of this bill.

Art. 392, C.C.P., reads as follows: "The attorney representing the State shall prepare all indictments which have been found, with as little delay as possible, and deliver them to the foreman, who shall sign the same officially, and said attorney shall indorse thereon the names of the witnesses upon whose testimony the same was found." It can readily be seen from a reading of this statute that the same is only directory—not mandatory, and has been so held from the beginning of our State jurisprudence. See Steele v. State, 1 Tex. 142; Walker v. State, 19 Tex.App. 176; Jackson v. State, 103 Tex.Cr.R. 258, 280 S.W. 836; Easterwood v. State, 132 Tex.Cr.R. 9, 101 S.W.2d 576; Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41, and many other cases.

A reading of the statute will readily show the implausibility of appellant's contention. The phrase "and said attorney shall indorse thereon the names of the witnesses upon whose testimony the same was found," if carried out to its herein contended conclusion, would mean that only the witnesses who appeared before the grand jury could be used upon the trial of the case, and any later discovered witnesses, or new rebuttal witnesses, would be precluded from testifying. We do not attach any importance to appellant's claim of surprise when confronted with the witness Caldwell. In the indictment returned herein counts three and four thereof alleged that appellant had received this property from Robert Caldwell and concealed same, etc. He filed no application for a continuance, but merely relied upon his bill. We do not think same reflects any error.

What we have first above said also applies to appellant's bill No. 2, which relates to the omission of the name of Boss Ray in the names of the witnesses furnished to appellant at the opening of the case. It is evident from the progress of the case that the testimony of Boss Ray only became admissible in rebuttal of the appellant's defense, which doubtless could not have been accurately anticipated before the trial began.

Bill of exceptions No. 2 is concerned with the following argument of the county attorney in the opening address to the jury: "Gentlemen of the Jury, our Constitution and our laws give to every person certain safeguards, among those are these: The right of a trial before a fair and impartial jury, in open court, and before an impartial judge, and the right to be represented by counsel of his own selection, and the right to compel the attendance of witnesses in his behalf, and is not compelled to testify in his own behalf." Immediately upon objection the trial court sustained the objection and instructed the jury to disregard such argument.

Evidently the county attorney was attempting to quote Section 10 of Article I of the State Constitution, commonly called the Bill of Rights, Vernon's Ann.St., and made only a casual reference to appellant's right to not be compelled to testify against himself, the same thing that the trial court later mentioned in his charge to the jury. The case of Wimberly v. State, 109 Tex.Cr. R. 581, 6 S.W.2d 120, 121, seems to be in point, and We quote therefrom:

"The transcript contains two bills of exception. The first complains of a statement made by the district attorney in his closing argument, deemed by appellant to be a comment on the...